Madras High Court
The Executive Engineer And vs G.Kutha Baksh (Died) ... 1St on 4 April, 2022
1 S.A.(MD)No.719 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.719 of 2010
The Executive Engineer and
Administrative Officer,
Madurai Special Division,
Tamil Nadu Housing Board,
Ellis Nagar,
Madurai – 10. ... Appellant / 3rd Respondent /
3rd Respondent / 3rd Defendant
Vs.
Khurshid Begum (Died) ... Appellant in A.S.No.32 of 2004 /
2nd Plaintiff
1. G.Kutha Baksh (Died) ... 1st Respondent / Review petitioner /
7th Respondent / 7th Defendant
2. State of Tamil Nadu,
Rep. By its Collector,
Madurai District,
Madurai.
3. The Secretary,
Housing Board and
Urban Land Development,
Fort St. George,
Chennai – 600 009.
4. The Special Tahsildar
(Land Acquisition),
Ellis Nagar Scheme,
Shenoy Nagar,
Madurai – 20.
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2 S.A.(MD)No.719 OF 2010
5. The Managing Director,
Pandian Roadways Corporation,
Madurai – 625 016.
6. The District Manager,
Madurai Telecom,
Bibikulam,
Madurai – 625 002.
... Respondents 2 to 6 /
Respondents 1,2,4 to 6 /
Respondents 1,2, 4 to 6 /
Defendants 1,2, 4 to 6
7. Arthur David ... 7th Respondent / 7th Respondent /
8th Respondent / 1st Plaintiff
8. K.Saleem
9. K.Haleem
10.K.Haseema Banu
11.K.Nayeem
12.K.Shaila Banu
(Respondents 8 to 12 were suo motu brought on record as LRs. of the
deceased 1st respondent vide Order dated 10.02.2022)
... Respondents 8 to 12
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment passed in Review Application
No.105 of 2010 in A.S.No.32 of 2004 dated 05.04.2010 on the
file of the III Additional Sub Court, Madurai, reversing the
Judgment and Decree dated 30.06.2009 in A.S.No.32 of 2004
on the file of the III Additional Sub Court, Madurai, confirming
the Judgment and Decree in O.S.No.945 of 2000 dated
15.07.2003 on the file of the Principal District Munsif Court,
Madurai Town.
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3 S.A.(MD)No.719 OF 2010
For Appellant : Mr.Mohammed Athif
For R-8 to R-12 : Mr.G.Prabhu Rajadurai
For R-5 : Mr.N.Murugesan
For R-2 to R-4 : Mr.Muthu Vijayan,
Special Government Pleader.
For R-6 : No appearance.
***
JUDGMENT
The present second appeal arises out of an injunction
suit.
2. One Arthur David and Khurshid Begum filed
O.S.No.945 of 2000 before the Principal District Munsif Court,
Madurai, seeking the relief of permanent injunction in respect
of the suit properties. The suit properties comprised three
schedules (ie.) schedule ' A ' , schedule ' B ' and schedule
' C '. The scope of the proceedings is confined to suit 'B'
schedule property and suit ' C ' schedule property. The second
plaintiff Khurshid Begum is the mother of the seventh
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defendant Kutha Baksh. The contesting defendants were the
Government of Tamil Nadu and the Tamil Nadu Housing
Board. By judgment and decree dated 15.07.2003, the trial
Court dismissed the suit. Challenging the same, the plaintiff
filed A.S.No.32 of 2004 before the III Additional Sub Court,
Madurai. The first appeal was dismissed on 30.06.2009. The
second plaintiff / appellant Khurshid Begum passed away and
following her demise, her son who was shown as the seventh
defendant in the suit filed Review Application No.105 of 2010.
The review application was allowed by the impugned
judgment and decree dated 05.04.2010. Challenging the same,
the Tamil Nadu Housing Board has filed this second appeal.
3. I initially entertained a doubt as to whether the
appeal would be maintainable. The learned Standing counsel
appearing for the Board drew my attention to Order 47, Rule 7
CPC. The said provision is as under:-
Order of rejection not appealable.
Objections to order granting application -
(1) An order of the Court rejecting the
application shall not be appealable; but an order
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granting an application may be objected to at once
an appeal from the order granting the application
or in an appeal from the decree or order finally
passed or made in the suit.
(2) Where the application has been
rejected in consequence of the failure of the
applicant to appear, he may apply for an order to
have the rejected application restored to the file,
and, where it is proved to the satisfaction of the
Court that he was prevented by any sufficient
cause from appearing which such application was
called on for hearing, the Court shall order it to be
restored to the file upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day
for hearing the same.
(3) No order shall be made under sub-rule
(2) unless notice of the application has been served
on the opposite party.
4. It is clear that only if a review application is
rejected, it is revisable and not appealable. However, an order
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granting review application is appealable. Therefore, there is
no dispute that the second appeal is maintainable.
5. The learned Standing counsel would point out that
the suit properties were the subject matter of land acquisition
proceedings. According to him, the land owner originally
agreed to abide by the outcome of the acquisition proceedings
by accepting compensation. However, the learned counsel on
either side raised several contentious issues. The second
appeal was admitted on the following substantial question of
law:-
“ Whether A.S.No.32 of 2004 as well as the review
application should have been closed in view of the decree in
O.S.No. 451 of 2004? ”
6. I am of the view that without going into any of
them, this second appeal can be disposed of on a short
ground. There is no dispute that Khurshid Begum and her son
Kutha Baksh after filing O.S.No.945 of 2000 filed another suit
in O.S.No.451 of 2004 before the II Additional Sub Court,
Madurai, seeking the relief of declaration and permanent
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injunction in respect of the suit ' B ' schedule and ' C '
schedule properties. In O.S.No.451 of 2004, the Government
of Tamil Nadu and the Tamil Nadu Housing Board were
defendants 1 and 5. The said suit came to be decreed on
27.04.2007. There is nothing on record to show that the said
judgment and decree has been set aside in the meanwhile. Of
course, I am duty bound to record the contention of the
learned Standing counsel appearing for the Board that the
said judgment and decree is fraudulent and is nullity in law.
But I am not inclined to go into the said contention. Suffice it
to say, when the contesting respondents herein are already
armed with a judgment and decree rendered in O.S.No.451 of
2004 dated 27.04.2007, A.S.No.32 of 2004 need not have been
pursued. It was absolutely superfluous. O.S.No.451 of 2004 is
rather comprehensive in nature because it was for the relief of
declaration also. The first appellate Court ought to have
closed A.S.No.32 of 2004 by making reference to the decree in
O.S.No.451 of 2004.
7. The first appellate Court clearly erred in allowing
A.S.No.32 of 2004 based on the judgment and decree made in
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O.S.No.451 of 2004. It was clearly superfluous and
unnecessary. On this ground, I set aside the impugned
judgment and decree. I allow the second appeal. I make it
clear that the contesting respondents will be very much
entitled to protection granted to them under the judgment and
decree dated 27.04.2007 in O.S.No.451 of 2004. It is of course
open to the Board or the Government to question the same in
the manner known to law.
8. With this observation, this second appeal is
allowed. No costs.
04.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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To:
1. The III Additional Sub Judge,
Madurai.
2. The Principal District Munsif,
Madurai Town.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.719 of 2010
04.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
